Approximately 6 years after the STF (Supreme Federal Court) ruled, judicial decisions still deal with cases against LGBTI people without systematically applying this understanding.
This is what the study “Judicial Responses for Cases of LGBTPhobia in Brazil” points out, from FGV (Fundação Getúlio Vargas), which analyzed second instance judgments in different States and identified gaps in the reasoning, in the convictions and in the language used by the courts. Here is the study (PDF – 2.1 mB).
The survey analyzed 71 decisions, handed down from 2020 to 2023, in 39 civil and 32 criminal actions involving discrimination based on sexual orientation and gender identity.
The research states that, in civil actions in which there was a conviction with financial compensation, the explicit reference to ADO 26 (Direct Action for Unconstitutionality by Omission) is an exception. In 23 civil decisions fixing compensation, 21 did not mention ADO 26. The average value fixed for compensation for moral, material and collective damages was R$ 13,413.04.
The study shows a large variation: the lowest value identified was R$1,000.00 and the highest amounted to R$80,000.00 (presented with correction for the base period indicated in the report).
The work also highlights differences between courts. In the sample presented, the TJSP (Court of Justice of São Paulo) had a higher conviction average than the TJPR (Court of Justice of Paraná) and the TJDFT (Court of Justice of the Federal District and Territories), which, according to the authors, indicates a lack of national parameters to guide compensation in cases of discrimination.
In criminal cases, the research indicates greater adherence to the Supreme Court’s understanding than in the civil sphere, but it is still unequal. Among the 32 decisions analyzed, 18 explicitly mentioned ADO 26.
The report provides examples of fine amounts and, in some cases, compensation fixed in the criminal process itself, with a wide range of amounts.
In addition to the numbers, the document lists language and institutional treatment problems, such as the inappropriate use of social names and references to the “dead name” in decisions, in addition to categories and expressions that, in the study’s evaluation, reinforce stigmas or minimize violence. The report states that the lack of a unified database and standardized categories in the Judiciary makes it difficult to track and monitor cases of LGBTphobia.
Among the recommendations, the study proposes to expand the dissemination and mandatory use of the Rogéria Form in cases of violence against LGBTI people, create a national trial protocol with a perspective of gender diversity and sexual orientation, strengthen continued training and encourage internal inspection mechanisms.
For FGV, the diagnosis is that the STF’s decision has not yet become a routine judgment. The document argues that the application of understanding depends on standardization, training and instruments that help courts recognize the social dimension of discrimination, and not treat episodes just as isolated conflicts.
